By Jerry Markon
Washington Post Staff Writer
Tuesday, October 24, 2006
A federal judge has ordered the New York Times Co. to disclose the confidential sources used by Nicholas D. Kristof in columns that explored whether a former Army scientist was responsible for the deadly 2001 anthrax attacks.
The ruling, made public yesterday, came in a lawsuit filed by the former scientist, Steven J. Hatfill, contending that the paper defamed him in a series of Kristof columns in 2002 that identified him as a "likely culprit." Hatfill has been identified by authorities as a "person of interest" in the anthrax-spore mailings that killed five people and sickened 17. No one has been charged in the attacks.
Hatfill's attorneys are seeking to compel Kristof to reveal his sources, arguing that questioning them is vital to their case. Kristof has refused. U.S. Magistrate Judge Liam O'Grady in Alexandria sided with Hatfill and ordered the journalist to disclose the identity of the three sources by tomorrow.
"The court understands the need for a reporter to be able to credibly pledge confidentiality to his sources," O'Grady wrote in his ruling Friday. But the judge said Hatfill "needs an opportunity to question the confidential sources and determine if Mr. Kristof accurately reported information the sources provided."
The Times said yesterday that it plans to appeal, and Kristof vowed to continue protecting his sources. "We were disappointed with the decision because we believe that confidential sources are sometimes very important in covering government investigations," Kristof said in an interview. "And I'm passionate about protecting the confidentiality of my sources."
The ruling is the latest in a series of court defeats for journalists trying to shield news-gathering activities from the legal process. Judges have ordered reporters covering issues ranging from baseball's steroid scandal to the investigation into the leak of CIA officer Valerie Plame's identity to disclose confidential sources. In the Plame case, former New York Times reporter Judith Miller spent 85 days in jail for refusing to comply.
But those were criminal cases; Hatfill's is a civil lawsuit. Legal experts said it is relatively common for judges to order journalists to reveal confidential sources in a libel lawsuit, but the journalist is rarely jailed for resisting.
If the journalist does refuse, a judge often strips him or her of the defense that the information was based on sources, which can expose media companies to significant liability, said Rodney A. Smolla, dean of the University of Richmond Law School and an expert on First Amendment law. "The journalist is being told you cannot have your cake and eat it, too," Smolla said. "You can't rely on the existence of this source but not let the jury and the court and the plaintiff explore the nature of the source."
In a series of columns in 2002, Kristof criticized the FBI for failing to aggressively pursue a scientist he initially called "Mr. Z." He wrote that the biodefense community had called Mr. Z a "likely culprit," partly because the scientist was familiar with anthrax.
Kristof later acknowledged that Hatfill was Mr. Z. He also wrote that Hatfill deserved the "presumption of innocence."
Hatfill, a former researcher at the Army's infectious disease research laboratory at Fort Detrick in Frederick, has been trying to clear his name ever since then-Attorney General John D. Ashcroft publicly called him a person of interest in 2002. An attorney for Hatfill did not return telephone calls late yesterday.
Hatfill's lawsuit against the Times Co., filed in 2004 in U.S. District Court in Alexandria, was dismissed by a federal judge but then reinstated and sent back to Alexandria last year by a federal appeals court.
When Kristof was deposed in July, two of his sources were identified -- although not by name -- as FBI employees involved in the anthrax investigation, court papers said. A third was a colleague or friend of Hatfill's. Two other sources agreed to release Kristof from his pledge of confidentiality and reveal their identities, the papers said.